what lies ahead for employers in 2013 7 march 2013
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What lies ahead for employers in 2013 ? 7 March 2013. Speaker. Paul Ball Head of Employment Tel: 0113 246 2312 Mob: 07753 323772 Email: [email protected] Programme . Settlement discussions and agreements Early conciliation

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Paul Ball

Head of Employment

Tel: 0113 246 2312

Mob: 07753 323772

Email: [email protected]

  • Settlement discussions and agreements
  • Early conciliation
  • Employment Tribunal fees and limit on compensation in unfair dismissal cases
  • Reform of ET rules
  • TUPE reform
  • Collective consultation changes
  • Management of long-term sickness
  • Questions
  • Enterprise and Regulatory Reform Bill currently going through Parliament
  • Government desire to cut red tape on businesses and aim to increase efficiency and competitiveness
  • Aim to reduce burden on ETs
  • Various recent consultation papers/responses to consultations issued
settlement agreements
Settlement Agreements
  • BIS Consultation: “Ending the employment relationship” (September 2012)
    • “Protected discussions”
    • Limit on unfair dismissal awards
  • Government response published January 2013
  • Likely implementation date, Summer 2013
settlement agreements continued
Settlement Agreements (continued)
  • Currently:
  • Risks associated with having “off the record” chats with employees
  • If the discussion is unsuccessful, will be admissible in subsequent ET claims
  • Any deal reached needs to be confirmed in a “compromise agreement”
  • Proposal:
  • Some protection given to parties who instigate settlement discussions.
  • Won’t be admissible in unfair dismissal claims
  • NB: “Improper behaviour” caveat
  • “Compromise agreements” to become “Settlement agreements”
settlement agreements continued1
Settlement Agreements (continued)
  • Draft ACAS Code of Practice and Guidance issued
  • Template letter to instigate settlement discussions
  • Can be instigated by an employer or employee
  • Not compulsory, i.e. a party can decline to enter settlement discussions
  • Model settlement agreement
settlement agreements continued2
Settlement Agreements (continued)
  • Risks
    • “Improper behaviour” caveat
    • Conduct during settlement discussions and possible breach of trust and confidence
    • If discussions fail, employer must then follow a fair process in taking action
    • Will only be ‘protected’ in relation to future unfair dismissal claims
    • Effect on other ET claims, e.g. discrimination or whistleblowing?
early conciliation
Early conciliation
  • BIS consultation, January 2013
  • Consultation closed 15 February 2013
  • New role for ACAS
  • Aim is to try and reduce number of disputes going to ET claims
early conciliation how will it work
Early conciliation - how will it work?
  • All prospective claimants must submit an “EC form” to ACAS before can issue the ET claim
  • Limited exceptions, e.g. multiple claimants, claims with a short time limit, claims where prospective respondent has already asked ACAS to conciliate
  • Limited information to be supplied to ACAS on the EC form
  • ET time limits will stop for 4 – 6 weeks
early conciliation continued
Early conciliation (continued)
  • Two stage ACAS contact with claimant:
    • First stage – telephone contact by an ECSO by close of business day after receipt of EC form
    • Second stage – contact by ACAS conciliator within 2 working days of receipt of the EC form
  • ACAS contact with the respondent
  • No obligation to conciliate
  • Where parties agree to conciliation, ACAS has one calendar month to try and reach settlement
  • Possible extension of up to 2 weeks, where is a reasonable prospect of settlement being achieved
early conciliation continued1
Early conciliation (continued)
  • At end of conciliation period, ACAS will issue an “EC Certificate”
  • ET time limit will recommence from this point
  • An EC Certificate number will be required before the ET will accept any subsequent claim
  • Possible time limit issues if EC Certificate issued early?
cap on unfair dismissal compensation
Cap on Unfair Dismissal Compensation
  • Proposal:
  • Subject to the maximum limit, a cap of 12 months’ pay on compensatory award on unfair dismissal cases
  • Currently:
  • Maximum compensation award £74,200
  • Median award significantly less than this*
  • Most awards/settlements are lower than claimant’s initial expectations *

* The SETA 2008 Survey

cap on unfair dismissal compensation continued
Cap on Unfair Dismissal Compensation (continued)
  • Government believes this will lead to:
    • earlier resolution of disputes
    • more certainty about likely costs of unfair dismissal claims
  • But:
    • risk of greater number of uncapped claims, e.g. discrimination?
    • risks of possible injunction action to prevent dismissal where a claim is likely to be worth more than/close to the maximum award?
fees in employment tribunal claims
Fees in Employment Tribunal Claims
  • Summer 2013
  • Aim is to encourage settlement, mediation and arbitration
  • Two stage fee charging structure
fees in employment tribunal claims continued
Fees in Employment Tribunal Claims (continued)
  • Remissions available for those unable to pay
  • Refunds available in limited circumstances only
fees in employment tribunal claims continued1
Fees in Employment Tribunal Claims (continued)
  • Multiple claims – the highest level fee is to be paid, once only
  • Multiple claimants – Depending on the number of claimants a multiplier of 2, 4 or 6 will apply to all fees
fees in employment tribunal claims continued2
Fees in Employment Tribunal Claims (continued)

Various application specific fees

* Payable by the employer

new employment tribunal rules of procedure
New Employment Tribunal Rules of Procedure
  • Government intention to bring new ET rules in force, April 2013
  • Objective is to simplify the existing ET rules
new employment tribunal rules of procedure continued
New Employment Tribunal Rules of Procedure (continued)
  • New ET1 and ET3 forms – NB. Minor changes only
  • Prescribed information must be supplied on the ET1 otherwise claim will be rejected
  • ET3 must be filed by 5pm on the relevant deadline
  • New procedure for seeking extension of time to file ET3
  • Sift stage to identify weak claims/responses:
    • Reasonable prospects of success
    • Any jurisdictional issues to be determined
    • Case management directions
    • Could lead to automatic strike-out of a claim/response
new employment tribunal rules of procedure continued1
New Employment Tribunal Rules of Procedure (continued)
  • CMDs and PHRs to be replaced with “preliminary hearings”
  • Wide ranging issues can be determined at a preliminary hearing
new employment tribunal rules of procedure continued2
New Employment Tribunal Rules of Procedure (continued)
  • Full hearings – ET judges to have wider discretion on conduct of these, e.g.:
    • Limiting duration of witness evidence or making submissions
    • May exclude witnesses from the hearing until they give evidence
  • Costs awards - £20,000 limit removed
  • Written reasons for decisions on any disputed issue to be given as standard (can be brief)
tupe reform
TUPE Reform
  • TUPE 2006 introduced “service provision changes” as a relevant transfer
  • First generation outsourcing, re-tendering or outsourced services reverting in-house
tupe reform1
TUPE Reform
  • Organised grouping of employees/resources carrying out an activity for a client
  • Whose principal purpose is the carrying out of that activity
  • Who are assigned to the grouping of resources or employees that is to transfer
  • Other than one-off/short-term duration or provision of goods only
tupe reform continued
TUPE Reform (continued)
  • BIS consultation, January 2013. Closes 11 April 2013
  • Government proposes to repeal service provision changes as a relevant transfer
  • Repeal of “Employee Liability Information” provisions – to be replaced with guidelines and model terms for contracts
  • Proposed change to existing provision which restricts changes to terms and conditions of employment by a transferee (NB. Won’t extend to harmonisation of terms and conditions)
tupe reform continued1
TUPE Reform (continued)
  • Proposal to limit duration of transferred collectively-agreed terms to 12 months post-transfer
  • Limitation on an employee’s ability to resign because of changes to working conditions – must be in breach of contract
  • Post-transfer change of workplace redundancy will be an ETO reason
  • Transferor to be able to rely on transferee’s reasons for dismissal
tupe reform continued2
TUPE Reform (continued)
  • Transferee to be able to consult with representatives of employees pre-transfer about post-transfer measures
  • Micro-businesses will be able to consult directly with employees rather than representatives
collective redundancy consultation
Collective Redundancy Consultation
  • BIS Consultation, June 2012
  • Government response, December 2012
  • Currently:
collective redundancy consultation continued
Collective Redundancy Consultation (continued)
  • From 6 April 2013
  • Non-statutory guidance on definition of “establishment”
  • Employees on fixed-term contracts close to expiry date to be excluded from the numbers
  • Protected award will remain up to 90 days pay per employee
management of long term sick employees
Management of long-term sick employees
  • 300,000 people fall out of employment into the welfare system because of health issues each year
  • £13 billion State costs on health related benefits
  • £9 billion employer costs on sick pay and associated costs
  • 2011 review led by Dame Carol Black “Health at Work – Independent Review of Sickness Absence”
  • January 2013 – Government response
review of long term sickness absence
Review of long-term sickness absence
  • Government accepts most recommendations made in the Health at Work report
  • Health and work assessment and advisory service to be set up
  • Revised fit note guidance for GPs
  • Reforms to the benefit system (not covered today)
review of long term sickness absence continued
Review of long-term sickness absence (continued)

Health & Work Assessment and Advisory Service (HWAAS)

  • State-funded
  • GP referral to HWAAS after 4 weeks’ sickness absence unless clear reasons for not doing so (e.g. employee is about to return to work)
  • Employer can refer employee to HWAAS directly
  • Information and advice from HWAAS to be shared with employers
review of long term sickness absence continued1
Review of long-term sickness absence (continued)


  • Initial telephone assessment by OH professional
  • Face-to-face assessment if needed
  • Report prepared and shared with the employee, employer and GP, outlining how best to secure a return to work
  • Continuing support where needed
  • Further action/remedial steps to be arranged where relevant
review of long term sickness absence continued2
Review of long-term sickness absence (continued)
  • Joint responsibility of employer, employee and GP to take forward recommendations
  • On-going provision of telephone and on-line advice for employees and employers at any time
  • Will link in with “Universal Jobmatch” service (hosted by Monster Worldwide) where employee would benefit from finding alternative employment
  • Employers will be encouraged to implement HWAAS recommendations via Access to Work scheme
review of long term sickness absence continued3
Review of long-term sickness absence (continued)
  • Government will review whether to provide tax relief on cost to employers of treatment/rehabilitation in due course
  • Existing tax relief on Employee Assistance Programmes retained (for now at least)
  • SSP record-keeping requirements to be relaxed
  • GPs and health care professionals to be supported to develop knowledge to help them provide useful advice for employers and employees
  • Revised fit note guidance to be issued
closing comments
Closing comments
  • Only a proportion of the employment law changes we are likely to have to deal with in the coming months
  • What do you think the likely impact these will have on how you manage people/people issues?
useful links
Useful links
  • www.gov.uk/government/consultations/ending-the-employment-relationship
  • www.acas.org.uk/media/pdf/2/r/Consultation_draft_COP_FW.pdf
  • www.gov.uk/government/consultations/early-conciliation-consultation-on-proposals-for-implementation
  • www.gov.uk/government/consultations/transfer-of-undertakings-protection-of-employment-regulations-tupe-2006-consultation-on-proposed-changes
  • www.gov.uk/government/consultations/collective-redundancies-consultation-on-changes-to-the-rules
  • www.dwp.gov.uk/policy/welfare-reform/sickness-absence-review/